AMENDED AND RESTATED REGISTRATION RIGHTS
Published on March 30, 2005
Execution Copy
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This amended and restated Registration Rights Agreement (this "Agreement")
is made this 23rd day of March 2005, by NEOGENOMICS, INC., a Nevada corporation
(the "Company") for the benefit of Aspen Select Healthcare, LP (formerly known
as MVP 3, LP, and hereinafter referred to as "ASPEN"), a Delaware limited
partnership, John Elliot, an individual, Steven Jones, an individual, Larry
Kuhnert, an individual and Michael T. Dent, M.D., an individual (individually a
"Shareholder" and collectively, the "Shareholders"). This Agreement replaces and
supersedes the original Registration Rights Agreement between the parties,
executed on April 15, 2003.
BACKGROUND
Pursuant to certain other agreements between the Company and the
Shareholders, the Company has agreed to grant to the Shareholders certain
registration rights, as more fully set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1.Registration Rights.
1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(b) "Common Stock" shall mean the common stock, par value $0.001 per share,
of the Company.
(c) "Form S-1, Form SB-1, Form S-2, Form SB-2 and Form S-3" shall mean Form
S-1, Form SB-1, Form S-2, Form SB-2 or Form S-3, respectively, promulgated by
the Commission or any substantially similar form then in effect.
(d) The terms "Register", "Registered" and "Registration" refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such Registration Statement.
(e) "Registrable Securities" shall mean the Shares so long as such shares
are ineligible for sale under subparagraph (k) of Rule 144.
(f) "Registration Expenses" shall mean all expenses incurred by the Company
in complying with Section 2, including, without limitation, all federal and
state registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such Registration
and the reasonable fees and disbursements of counsel for the Selling
Shareholders, as selling shareholders.
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(g) "Registration Statement" shall mean Form S-1, Form SB-1, Form S-2, Form
SB-2 or Form S-3, whichever is applicable.
(h) "Restriction Termination Date" shall mean, with respect to any
Registrable Securities, the earliest of (i) the date that such Registrable
Securities shall have been Registered and sold or otherwise disposed of in
accordance with the intended method of distribution by the seller or sellers
thereof set forth in the Registration Statement covering such securities or
transferred in compliance with Rule 144, and (ii) the date that an opinion of
counsel to the Company containing reasonable assumptions (which opinion shall be
subject to the reasonable approval of counsel to any affected Shareholder) shall
have been rendered to the effect that the restrictive legend on the Shares can
be properly removed and such legend shall have been removed.
(i) "Rule 144" shall mean Rule 144 promulgated by the Commission pursuant
to the Securities Act.
(j) "Shareholders" shall mean, collectively, the Shareholders, their
assignees and transferees, and individually, a Shareholder and any transferee or
assignee of such Shareholder.
(k) "Securities Act" shall mean the Securities Act of 1933, as amended.
(l) "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant to this
Agreement.
(m) "Selling Shareholders" shall mean a holder of Registrable Securities
who requests Registration under Section 2 herein.
(n) "Shares" shall mean the shares of Common Stock as set forth of Schedule
A.
1.2 Required Registration. If the Company shall be requested by ASPEN that
the Company register all or part of ASPEN's Registrable Securities, then the
Company shall promptly, use its best efforts to effect the Registration of the
Registrable Securities that the Company has been requested to Register for
disposition as described in the request of ASPEN's Shares; provided, however,
that the Company shall not be obligated to effect any Registration except in
accordance with the following provisions:
(a) The Company shall not be obligated to file and cause to become
effective more than three (3) registration statements in which Registrable
Securities are Registered pursuant to this Section 1.2; provided, however, that
the registration of Registrable Securities on a Form S-3 or any successor form
where the gross proceeds from the sale of such securities are anticipated to be
at least $250,000 shall not be counted towards such three (3) registration
statements limit.
(b) Notwithstanding the foregoing, the Company may include in each such
Registration requested pursuant to this Section 1.2 any authorized but unissued
shares of Common Stock (or authorized treasury shares) for sale by the Company
or any issued and outstanding shares of Common Stock for sale by others,
provided, however, that, if the number of shares of Common Stock so included
pursuant to this clause (b) exceeds the number of Registrable Securities
requested by the holders of Shares requesting such Registration, then such
Registration shall be deemed to be a Registration in accordance, with and
pursuant to Section 1.3; and provided further, however, that the inclusion of
such previously authorized but unissued shares of Common Stock by the Company or
issued and outstanding shares of Common Stock by others in such Registration
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shall not prevent the holders of Shares requesting such Registration from
registering the entire number of Registrable Securities requested by them.
(c) The Company shall not be required to file a registration statement
pursuant to this Section 1: (i) within six (6) months after any other
registration by the Company (other than under "Excluded Forms," as defined in
Section 1.3 (a) below) or (ii) for six (6) months after the request for
registration under this Section 1.2 if the Company is then engaged in
negotiations regarding a material transaction which has not otherwise been
publicly disclosed, or such shorter period ending on the date, whichever first
occurs, that such transaction is publicly disclosed, abandoned or consummated.
1.3 Piggyback Registration.
(a) Each time that the Company proposes to Register a public offering
solely of its Common Stock, other than pursuant to a Registration Statement on
Form S-4 or Form S-8 or similar or successor forms (collectively, "Excluded
Forms"), the Company shall promptly give written notice of such proposed
Registration to all holders of Shares, which shall offer such holders the right
to request inclusion of any Registrable Securities in the proposed Registration.
(b) Each holder of Shares shall have ten (10) days or such longer period as
shall be set forth in the notice from the receipt of such notice to deliver to
the Company a written request specifying the number of shares of Registrable
Securities such holder intends to sell and the holder's intended plan of
disposition.
(c) In the event that the proposed Registration by the Company is, in whole
or in part, an underwritten public offering of securities of the Company, any
request under Section 1.3(b) may specify that the Registrable Securities be
included in the underwriting on the same terms and conditions as the shares of
Common Stock, if any, otherwise being sold through underwriters under such
Registration.
(d) Upon receipt of a written request pursuant to Section 1.3(b), the
Company shall promptly use its best efforts to cause all such Registrable
Securities to be Registered, to the extent required to permit sale or
disposition as set forth in the written request.
(e) Notwithstanding the foregoing, if the managing underwriter of an
underwritten public offering, determines and advises in writing that the
inclusion of all Registrable Securities proposed to be included in the
underwritten public offering, together with any other issued and outstanding
shares of Common Stock proposed to be included therein by holders other than the
holders of Registrable Securities (such other shares hereinafter collectively
referred to as the "Other Shares"), would interfere with the successful
marketing of the securities proposed to be included in the underwritten public
offering, then the number of such shares to be included in such underwritten
public offering shall be reduced, and shares shall be excluded from such
underwritten public offering in a number deemed necessary by such managing
underwriter, first by excluding shares held by the directors, officers,
employees and founders of the Company, and then, to the extent necessary, by
excluding Registrable Securities participating in such underwritten public
offering, pro rata, based on the number of shares of Registrable Securities each
such holder proposed to include.
(f) All Shares that are not included in the underwritten public offering
shall be withheld from the market by the holders thereof for a period, not to
exceed 6 months following a public offering, that the managing underwriter
reasonably determines as necessary in order to effect the underwritten public
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offering. The holders of such Shares shall execute such documentation as the
managing underwriter reasonably requests to evidence this lock-up.
1.4 Preparation and Filing. If and whenever the Company is under an
obligation pursuant to the provisions of this Section 1 to use its best efforts
to effect the Registration of any Registrable Securities, the Company shall, as
expeditiously as practicable:
(a) prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause such
Registration Statement to become and remain effective in accordance with Section
1.4(b) hereof, keeping each Selling Shareholder advised as to the initiation,
progress and completion of the Registration;
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statements and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective for nine months
and to comply with the provisions of the Securities Act with respect to the sale
or other disposition of all Registrable Securities covered by such registration
statement;
(c) furnish to each Selling Shareholder such number of copies of any
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as such Selling Shareholder may reasonably request in order to facilitate the
public sale or other disposition of such Registrable Securities;
(d) use its best efforts to register or qualify the Registrable Securities
covered by such registration statement under the securities or blue sky laws of
such jurisdictions as each Selling Shareholder shall reasonably request and do
any and all other acts or things which may be necessary or advisable to enable
such holder to consummate the public sale or other disposition in such
jurisdictions of such Registrable Securities; provided, however, that the
Company shall not be required to consent to general service of process, qualify
to do business as a foreign corporation where it would not be otherwise required
to qualify or submit to liability for state or local taxes where it is not
liable for such taxes; and
(e) at any time when a prospectus covered by such Registration Statement is
required to be delivered under the Securities Act within the appropriate period
mentioned in Section 1.4(b) hereof, notify each Selling Shareholder of the
happening of any event as a result of which the prospectus included in such
Registration, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing and, at the request of such seller, prepare, file and furnish to
such seller a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
Shareholders of such shares, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statement therein not misleading in the
light of the circumstances then existing.
1.5 Expenses. The Company shall pay all Registration Expenses incurred by
the Company in complying with this Section 1; provided, however, that all
underwriting discounts and selling commissions applicable to the Registrable
Securities covered by registrations effected pursuant to Section 1.2 hereof
shall be borne by the seller or sellers thereof, in proportion to the number of
Registrable Securities sold by such seller or sellers.
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1.6 Information Furnished by Shareholder. It shall be a condition precedent
to the Company's obligations under this Agreement as to any Selling Shareholder
that each Selling Shareholder furnish to the Company in writing such information
regarding such Selling Shareholder and the distribution proposed by such Selling
Shareholder as the Company may reasonably request.
1.7 Indemnification.
1.7.1 Company's Indemnification of Shareholders. The Company shall
indemnify each Selling Shareholder, each of its officers, directors and
constituent partners, and each person controlling such Selling Shareholder, and
each underwriter thereof, if any, and each of its officers, directors,
constituent partners, and each person who controls such underwriter, against all
claims, losses, damages or liabilities (or actions in respect thereof) suffered
or incurred by any of them, to the extent such claims, losses, damages or
liabilities arise out of or are based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus or any related
Registration Statement incident to any such Registration, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to actions or inaction required of the
Company in connection with any such Registration; and the Company will reimburse
each such Selling Shareholder, each such underwriter, each of their officers,
directors and constituent partners and each person who controls any such Selling
Shareholder or underwriter, for any legal and any other expenses as reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action; provided, however, that the indemnity contained in
this Section 1.7.1 shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability or action if settlement is effected without the
consent of the Company (such consent shall not unreasonably be withheld); and
provided, however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based upon any untrue statement or omission based upon written information
furnished to the Company by such Selling Shareholder, underwriter, controlling
person or other indemnified person and stated to be for use in connection with
the offering of securities of the Company.
1.7.2 Selling Shareholder's Indemnification of Company. Each Selling
Shareholder shall indemnify the Company, each of its directors and officers,
each underwriter, if any, of the Company's Registrable Securities covered by a
Registration Statement each person who controls the Company or such underwriter
within the meaning of the Securities Act and each other Selling Shareholder,
each of its officers, directors and constituent partners and each person
controlling such other Selling Shareholder, against all claims, losses, damages
and liabilities (or actions in respect thereof) suffered or incurred by any of
them and arising out of or based upon any untrue statement (or alleged untrue
statement) of a material fact contained in such Registration Statement or
related prospectus, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by such Selling Shareholder of any rule
or regulation promulgated under the Securities Act applicable to such Selling
Shareholder and relating to actions or inaction required of such Selling
Shareholder in connection with the Registration of the Registrable Securities
pursuant to such Registration Statement; and will reimburse the Company, such
other Selling Shareholders, such directors, officers, partners, persons,
underwriters and controlling persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
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claim, loss, damage, liability or action; such indemnification and reimbursement
shall be to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
Registration Statement or prospectus in reliance upon and in conformity with
written information furnished to the Company by such Selling Shareholder and
stated to be specifically for use in connection with the offering of Registrable
Securities.
1.7.3 Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 1.7 of notice of the commencement of any
action which may give rise to a claim for indemnification hereunder, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 1.7, notify the indemnifying party in writing of the
commencement thereof and generally summarize such action. The indemnifying party
shall have the right to participate in and to assume the defense of such claim,
and shall be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall not be
unreasonably withheld. Notwithstanding the foregoing, the parties entitled to
indemnification shall have the right to employ separate counsel (reasonably
satisfactory to the indemnifying party) to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
indemnified parties unless the named parties to such action or proceedings
'include both the indemnifying party and the indemnified parties and the
indemnifying party or such indemnified parties shall have been advised by
counsel that there are one or more legal defenses available to the indemnified
parties which are different from or additional to those available to the
indemnifying party (in which case, if the indemnified parties notify the
indemnifying party in writing that they elect to employ separate counsel at the
reasonable expense of the indemnifying party, the indemnifying party shall not
have the right to assume the defense of such action or proceeding on behalf of
the indemnified parties, it being understood, however, that the indemnifying
party shall not, in connection with any such action or proceeding or separate or
substantially similar or related action or proceeding in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate counsel at any time for
all indemnified parties, which counsel shall be designated in writing by the
Shareholders of a majority of the Registrable Securities).
1.7.4 Contribution. If the indemnification provided for in this
Section 1.7 from an indemnifying party is unavailable to an indemnified party
hereunder in respect to any losses, claims, damages, liabilities or expenses referred
to herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
party and indemnified party in connection with the statements or omissions which
result in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or indemnified party and the parties'
relative intent, knowledge, access to information supplied by such indemnifying
party or indemnified party and opportunity to correct or prevent such statement
or omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action, suit, proceeding or
claim.
2. Covenants of the Company.
The Company agrees to:
(a) Notify the holders of Registrable Securities included in a Registration
Statement of the issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible time.
(b) If the Common Stock is then listed on a national securities exchange,
use its best efforts to cause the Registrable Securities to be listed on such
exchange. If the Common Stock is not then listed on a national securities
exchange, use its commercially reasonable efforts to facilitate the reporting of
the Registrable Securities on NASDAQ.
(c) Take all other reasonable actions necessary to expedite and facilitate
disposition of the Registrable Securities by the holders thereof pursuant to the
Registration Statement.
(d) With a view to making available to the holders of Registrable
Securities the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the Commission that may at any time permit the
Shareholders to sell securities of the Company to the public without
registration, the Company, after it has become obligated to file periodic or
other reports pursuant to Section 13 of the 1934 Act agrees to:
(i) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities and Exchange Act of 1934 (the "1934 Act"); and
(ii) furnish to each holder of Shares, so long as such holder of
Shares owns any Shares, forthwith upon written request (a) a written
statement by the Company that it has complied with the reporting
requirements of Rule 144 (at any time after 90 days after the effective
date of the first registration statement filed by the Company), the
Securities Act and the 1934 Act (at any time after it has become subject to
such reporting requirements), (b) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so
filed by the Company and (c) such other information as may be reasonably
requested and as is publicly available in availing the holders of Shares of
any rule or regulation of the Commission which permits the selling of any
such securities without registration.
(e) Prior to the filing of the Registration Statement or any amendment
thereto (whether pre-effective or post-effective), and prior to the filing of
any prospectus or prospectus supplement related thereto, the Company will
provide each Selling Shareholder with copies of all pages thereto, if any, which
reference such Selling Shareholder.
3. Miscellaneous.
(a) Notices required or permitted to be given hereunder shall be in writing
and shall be deemed to be sufficiently given when personally delivered or sent
by registered mail, return receipt requested, addressed (i) if to the Company,
at 12701 Commonwealth Blvd, Suite 9, Ft. Myers, FL 33913 and (ii) if to a
Shareholder, at the address set forth in the Company's records, or at such other
address as each such party furnishes by notice given in accordance with this
Section 3(a);
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(b) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
will not operate as a waiver thereof. No waiver will be effective unless and
until it is in writing and signed by the party giving the waiver;
(c) Governing Law; Jurisdiction; Jury Trial. The corporate laws of the
State of Nevada shall govern all issues concerning the relative rights of the
Company and its Shareholders. All other questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
the internal laws of the State of Florida, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Florida or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Florida. Each party hereby irrevocably
submits to the jurisdiction of the Circuit Court for Collier County, Florida and
the United States District Court for the Middle District of Florida for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(d) In the event that any provision of this Agreement is invalid or
unenforceable under any applicable or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform with such statute or rule of law. Any provision
hereof which may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof,
(e) This Agreement may be assigned by the Shareholders to any transferee of
the Shareholder's Shares;
(f) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof; and
(g) This Agreement may be executed in two or more counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which together shall be deemed to be one and the same Agreement.
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IN WITNESS WHEREOF, the Company has executed this Agreement for the benefit
of the Shareholders by its duly authorized officer as of the date first above
written.
NEOGENOMICS, INC.
By:/s/ Robert Gasparini
Name: Robert Gasparini
Title: President
Aspen Select Healthcare, LP (formerly known as
MVP 3, LP), a Delaware limited partnership
By: Medical Venture Partners, LLC, a Delaware
limited liability company, its General partner
By:____________________________
Name:
Title:
/s/ John E. Elliot
John E. Elliot
/s/ Steven Jones
Steven C. Jones
/s/ Larry R. Kuhnert
Larry R. Kuhnert
/s/ Michael T. Dent, M.D.
Michael T. Dent, M.D.
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SCHEDULE A
AMENDED AND RESTATED
OWNERSHIP OF SHARES
Name Number of Shares
Aspen Select Healthcare, LP 9,903,279
John Elliott 1,041,261
Steven Jones 1,174,595
Larry Kuhnert 1,041,261
Michael Dent 2,490,634
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